Bernier v. Allen

JEAN-GABRIEL BERNIER, Plaintiff, v. JEFF ALLEN, Defendant.

Case No. 16-cv-00828 (APM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

July 20, 2020

MEMORANDUM OPINION AND ORDER

I.

Plaintiff Jean-Gabriel Bernier, a federal prisoner, is suing Defendant Jeff Allen, Chief Physician for the Bureau of Prisons, for violating his Eighth Amendment rights. Plaintiff claims that, in December 2015, Defendant unconstitutionally denied him Harvoni, an antiviral drug that effectively cures Hepatitis C. The court previously granted Defendant's motion to dismiss on the ground that Plaintiff had not plausibly alleged facts that could overcome Defendant's qualified immunity defense. Plaintiff now requests that the court either (1) reconsider its ruling and vacate its previous Order dismissing the action, or (2) amend its Order to clarify that the dismissal is without prejudice, and grant Plaintiff leave to file a Second Amended Complaint. The court finds that Plaintiff's proposed Second Amended Complaint cures the defects in his earlier pleading by alleging facts that plausibly establish a clear violation of Plaintiff's Eighth Amendment rights. Therefore, the court grants Plaintiff's motion to amend its previous Order and accepts for filing Plaintiff's proposed Second Amended Complaint.

II.

The court has detailed the factual and procedural history of this case at length in its previous opinions. See Mem. Op., ECF No. 88 [hereinafter Bernier III], at 1-2; Bernier v. Trump (Bernier II), 299 F. Supp. 3d 150, 152-54 (D.D.C. 2018); Bernier v. Trump (Bernier I), 242 F. Supp. 3d 31, 35-37 (D.D.C. 2017). Therefore, the court will only briefly summarize the information that is relevant for purposes of Plaintiff's instant motion.

Plaintiff is a prisoner in custody of the Federal Bureau of Prisons ("BOP") who suffers from Hepatitis C. Am. Compl., ECF No. 70 [hereinafter Am. Compl.], ¶¶ 5, 7. In December 2015, Plaintiff requested that the BOP treat his condition with Harvoni, a direct-acting antiviral drug, which had been approved by the Food and Drug Administration one year prior, in October 2014. Id. ¶¶ 13, 18, 22. Harvoni is extremely effective, curing nearly 100 percent of patients with characteristics similar to those of Plaintiff, but it is not cheap: a 12-week course of treatment costs approximately $94,000. Id. ¶¶ 13-14. On December 31, 2015, Defendant rejected Plaintiff's application, reasoning that Plaintiff's symptoms did not qualify him for immediate treatment under the BOP's existing prioritization protocol for administering antiviral treatment to inmates with chronic Hepatitis C infections. Id. ¶¶ 19, 21.

Proceeding pro se, Plaintiff filed this action in May 2016. See generally Compl., ECF No. 1. Plaintiff alleged, among other things, that Defendant violated Plaintiff's Eighth Amendment rights when he denied Plaintiff's request for Harvoni treatment in December 2015. See id. ¶¶ 10-27a, 46. In 2017, the court granted Defendant's motion to dismiss on the ground that Plaintiff had not plausibly overcome Defendant's qualified immunity defense. Bernier I, 242 F. Supp. 3d at 39. The court later reconsidered its decision, finding that it had framed the asserted Eighth Amendment right too narrowly. See Bernier II, 299 F. Supp. 3d at 157. The courtnevertheless dismissed the action for insufficient service of process, but allowed Plaintiff to file an amended complaint and to properly serve it on Defendant. See id. at 157-59. In June 2018, Plaintiff filed an amended complaint—this time with the help of an attorney—and served Defendant shortly thereafter. See generally Am. Compl.; Aff. of Service, ECF No. 72.

Once again, the court dismissed Plaintiff's Amended Complaint on qualified immunity grounds. The court rejected Plaintiff's contention that the Eighth Amendment right in question should be broadly defined as the "right of prisoners to adequate medical care, and to be free from deliberate indifference to their serious medical needs." See Bernier III at 4 (quoting Pl.'s Mem. of P. & A. in Opp'n to Def.'s Mot. to Dismiss or for Summ. J., ECF No. 83, at 15). This "general proposition," the court reasoned, was not sufficiently "particularized . . . so that the contours of the right are clear to a reasonable official." Id. at 4-5 (quoting Reichle v. Howards, 566 U.S. 658, 665 (2012)).

Next, the court considered whether Plaintiff had plausibly alleged any of the three more narrowly defined Eighth Amendment violations outlined in Abu-Jamal v. Kerestes, 779 F. App'x 893 (3d Cir. 2019). See id. at 5-6. In that case, the Third Circuit observed that a prison official exhibits deliberate indifference in violation of the Eighth Amendment if he: (1) delays necessary medical treatment for non-medical reasons, (2) opts for an easier and less efficacious treatment, or (3) prevents an inmate from receiving recommended treatment for serious medical needs. See id. (citing Abu-Jamal, 779 F. App'x at 900). Plaintiff did "not rely on either the first or second type of violation" identified in Abu-Jamal, but instead "h[u]ng his hat" on only the third type of violation. Id. at 6-7. In support of his claim that Defendant prevented him from receiving recommended treatment for a serious medical need, Plaintiff noted that, in October 2015—two months before Defendant rejected his request for Harvoni treatment—a panel of experts with theAmerican Association for the Study of Liver Disease ("AASLD") and the Infectious Diseases Society of America ("IDSA") declared that "treatment with [direct-acting antiviral drugs] is recommended for all patients with chronic [Hepatitis C]." See Am. Compl. ¶ 43. Plaintiff argued that by denying Plaintiff's treatment request on the basis of the BOP's then-existing priority treatment protocol, Defendant "disregarded the medical standard of care for treatment of [Hepatitis C] infection . . . , in reliance upon a prioritization protocol no longer consistent with accepted professional medical judgment." Id. ¶ 45.

The court held that Plaintiff had not plausibly pleaded a clear Eighth Amendment violation for three reasons. First, the AASLD/IDSA's recommendation to treat all Hepatitis C patients with direct-acting antiviral drugs was "qualified . . . in ways relevant to prison populations," and was not "unequivocal" as Plaintiff had argued. Bernier III at 7-8 (cleaned up). Second, the "timing of the AASLD/IDSA panel's recommendation and the rapidly changing medical landscape undermine[d] the notion that Plaintiff had a settled, absolute right to treatment at the time of [Defendant's] decision." Id. at 8. The court noted that AASLD/IDSA had a prioritization protocol that was analogous to the BOP's until "a mere two months" before Defendant denied Plaintiff's application in December 2015, and that BOP did not "sit still" following the AASLD/IDSA's new recommendation; rather, it updated its guidance in May 2016, and again in October 2016, whereupon Plaintiff became eligible for treatment with Harvoni or an analogous drug. Id. at 8-9. Finally, the court found that Defendant's decision was not plainly incompetent or a knowing violation of the law because it was based on Plaintiff's low "APRI score," a medically-accepted diagnostic measure of liver cirrhosis. Id. at 10; see also id. at 7. Though Plaintiff also pointed to the results from another diagnostic technique—a blood test called Fibrosure—showing that his liver condition was more severe than his APRI score alone indicated, the court found that Plaintiffhad failed to allege that Defendant knew of the Fibrosure results. Id. at 10-11. Therefore, the court concluded that Plaintiff had not adequately alleged Defendant's deliberate indifference based on this "particular diagnostic indicator." Id. at 11.

Plaintiff now moves the court to alter or amend its judgment pursuant to Federal Rule of Civil Procedure 59(e). See Pl.'s Mot. to Alter or Amend Judgment, ECF No. 90. Plaintiff argues that the court clearly erred in rejecting Plaintiff's broad framing of the Eighth Amendment right in question and that the court overlooked certain of Plaintiff's allegations and arguments "laying the foundation" for a finding that Defendant violated a clearly established right under the Eighth Amendment. See Pl.'s Mem. of P. & A. in Supp. of His Mot. to Alter or Amendment Judgment, ECF No. 90-1 [hereinafter Pl.'s Mot.], at 6-18 (cleaned up). In the alternative, Plaintiff asks that the court amend its earlier order to clarify that the dismissal was without prejudice and grant Plaintiff leave to file a Second Amended Complaint pursuant to Rule 15(a). Id. at 18-20; see also id., Ex. 2, ECF No. 90-3 [hereinafter Second Am. Compl.].¹ Because Plaintiff's Second Amended Complaint cures the defects in his Amended Complaint, the court grants Plaintiff's request for leave to amend and does not reach Plaintiff's other arguments.

III.

A.

The D.C. Circuit announced in Brink v. Continental Insurance Co. that, when a plaintiff whose complaint has been dismissed with prejudice files a Rule 59(e) motion to alter or amend a judgment combined with a Rule 15(a) motion requesting leave to amend her complaint, the "denial of the Rule 59(e) motion in that situation is an abuse of discretion if the dismissal of the complaint with prejudice was erroneous; that is, the Rule 59(e) motion should be granted unless 'theallegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.'" 787 F.3d 1120, 1128-29 (D.C. Cir. 2015) (quoting Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996)). Brink's permissive standard for reconsidering a judgment based on newly alleged facts applies even to complaints that have been dismissed on their merits for failing to state a plausible claim, see id.; accord Seth v. District of Columbia, No. 19-7057, 2020 WL 2611716, at *3 (D.C. Cir. Apr. 21, 2020), and appears to mark a departure from the black-letter rule that "reconsideration of a judgment after its...